HAPPY NEW YEAR!

ESTATE PLANNING

This article was just sent to me and I re post it here.

Many people I know are reluctant to go ahead with any estate planning - to at least have a will. Without a will, an individual's estate goes into intestacy and an administrator must be appointed.

Sometimes the adminsitrator may be a relation, attorney or friend of the deceased. Sometimes, a public administrator is appointed.

The following article should not be construed as an indictment of all public appointed administrators (or judges) but as an incentive for estate planning:


Bronx Surrogate Holzman faces censure but escapes removal in misconduct case

NEW YORK UNEMPLOYMENT INSURANCE - TERMINATION

This is just a reminder that when an employee is terminated, the right to Unemployment Insurance may not be the only legal issue that arises.

Here is a link to a recent article:

MSN CAREERS: Unfair dismissal: Has your employer broken the law?

HAPPY HOLIDAYS

MORE ON HURRICANE SANDY

The Adam Leitman Bailey, P.C. law firm spoke at the NYSBA seminars on rental issues and Sandy and here is a link to their discussion:

Post-Sandy Landlord-Tenant Questions and Answers About Your Apartments

MORE ON HURRICANE SANDY

During the NYSBA seminars on Sandy Relief, the following material was handed out:

"Are Landlords Really Responsible for Con-Ed’s Inability to Provide Power?

Q. Are you saying that whenever a rent regulated tenant loses power because of a widespread power outage that the tenant is entitled to a rent abatement?

A. It has nothing to do with rent regulation. It’s all about the warranty of habitability. As to a power outage, it depends on the duration. For a few minutes, there is no abatement and that is also probably true of a couple of hours. However, if the outage is for days, there would be an abatement.

We learn this from the case of Park West Management Corp. v. Mitchell, 47 NY2d 316, 418 NYS2d 310 in which New York’s highest court, the Court of Appeals wrote in 1979, "The scope of the warranty includes, of course, conditions caused by both latent and patent defects existing at the inception of and throughout the tenancy. However, as the statute places an unqualified obligation on the landlord to keep the premises habitable, conditions occasioned by ordinary deterioration, work stoppages by employees, acts of third parties or natural disaster are within the scope of the warranty as well (cf., Uniform Residential Landlord and Tenant Act, § 2.104). Inasmuch as the landlord is vested with the ultimate control and responsibility for the building, it is he who has a corresponding nondelegable and nonwaivable duty to maintain it. The obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in habitable condition."

When the court wrote, "acts of third parties or natural disaster are within the scope of the warranty as well," it was making clear that it does not have to be the landlord’s fault or anyone’s fault that the apartment has become unlivable. The court is just saying that for whatever reason the apartment becomes unlivable, the tenant does not have to pay the rent during the unlivable period."

MORE ON HURRICANE SANDY

Interesting matter that came up:

Landlord and Tenant have written residential lease in which Tenant is to pay directly for all utilities viz., electricity, heat and hot water which is all run by electricity. Sandy power interruption is for two weeks and Tenant must move out for health reasons. Tenant pays rent and deducts 2 weeks rent, claiming premises were uninhabitable. Landlord brings non payment.

VOLUNTEER LAWYERS PROJECT

Today, I will be a volunteer lawyer at Landlord/Tenant District Court as part of the Volunteer Lawyers Project of Nassau County Bar Association.
 "Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.  Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.  • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.  • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.
• The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody."

MORE ON HURRICANE SANDY

First, the post below was supposed to be published on Friday - mea culpa.

Second, today I will be a volunteer lawyer at the Nassau County Bar Association volunteering for their Sandy Relief clinic on Monday 12/17/12 from 10 - 12.

For more information call:

Nassau County Bar Association
15th & West Streets
Mineola, NY 11501
Phone 516-747-4070 ext. 226

MORE ON HURRICANE SANDY

Many homeowners from Sandy have been unable to cash settlement checks because they are made out to both homeowners and their mortgage lenders. Since homes are the collateral backing mortgages written by banks, it's common for insurers to make out settlement checks to both homeowners and lenders. Banks often wait to sign off until the work is finished to make sure the property is repaired.

Governor Cuomo on Wednesday announced that some financial institutions have agreed to expedite endorsements for initial settlement checks, typically less than $20,000. Most of the homeowners I counsel at the NCBA naturally have suffered damages way in excess of $20,000. Some homeowners, to compound the issue, are underwater, noth with respect to the storm damage as well as the value of their home.

THE FISCAL CLIFF AND NEW YORK COURTS

Of course, court is a difficult place to get immediate relief but here is an interesting article about the possible fallout from certain political disputes:

CRAINS: Fiscal Cliff could slam New York's congested courts

MORE ON HURRICANE SANDY

For attorneys impacted by the storm, here is an email I received yesterday:

"Hi Jon,

After your recent post on Hurricane Sandy I wanted to reach out to you about Lawline's efforts to help attorneys affected by the storm. Lawline.com, one of the nation's leading online CE providers, has opened its doors to any and all attorneys still needing to complete their CLE credits for any upcoming deadline.

Lawline will be offering all of its December LIVE SEMINAR CLE courses for free! In this time of need, Lawline hopes to extend a helping hand to attorneys whose schedules were changed abruptly and still need to complete their credits.

If you have any questions or would like more information please don't hesitate to ask!

Thanks in advance,

Stephanie

--

Stephanie Paeprer
Media Relations Coordinator
Lawline.com - A Division of FurtherEd
61 Broadway, Suite 1105
New York, NY 10006Phone: 646.448.3280Fax: 212.514.7072Stephanie@Lawline.com

Check us out on Facebook, Twitter & Google+!"

MORE ON HURRICANE SANDY

Hurricane Sandy survivors, who received temporary housing assistance from the Federal Emergency Management Agency, and continue to have a housing need, must fill out an important form for additional short-term rental assistance.

FEMA mails all applicants who receive rental assistance the “Declaration for Continuing Need for Rental Assistance” form. It reaffirms that applicants have an ongoing need for temporary housing while they search for a permanent place to live.

This form is mailed 15 days after applicants receive their initial rental assistance grant.
Applicants who need additional rental assistance must complete the form and mail it back to FEMA at the address printed on the form.

If you don’t have the form, contact FEMA’s toll-free helpline 800-621-FEMA (3362).

MORE ON HURRICANE SANDY

I will be a volunteer lawyer this morning from 10-12:

In an effort to aid the residents of Nassau County from the devastating effects of SUPERSTORM SANDY, the Nassau County Bar Association has scheduled legal clinics to help businesses and individuals on Monday, December 10, 2012 and Monday, December 17, 2012

Free one-on-one consultation with an attorney 10 a.m. - 12 noon or 3:30 - 6 p.m.

NASSAU COUNTY BAR ASSOCIATION 15th Street at the corner of West Street, Mineola

NEW YORK MATRIMONIAL - SAME SEX COUPLES

Due to recent court decisions, it is now suggested that same-sex couples should consult with their tax attorney to see if they may qualify to file a “Protective Claim for Refund.”

More information can be found at this link:

JD SUPRA: Same-sex married couples: Consider filing a Protective Claim for Tax Refund NOW

MORE ON HURRICANE SANDY

According to Newsday:

"Nassau residents whose homes were seriously damaged by superstorm Sandy should ask the county to reduce their assessment by the end of this month in order to get their property taxes reduced next year, Democratic legislators announced Wednesday."

For more information, see this link:

NEWSDAY - Nassau pols: Seek Sandy property tax relief now

MORE ON HURRICANE SANDY

From the Nassau County Bar Association (I will be a volunteer on the mornings of the 10th and 17th): "SANDY VICTIMS ARE STILL IN NEED – WE NEED YOUR HELP TO ASSIST THEM.

The Nassau County Bar Association is continuing our efforts to aid Nassau County residents in the aftermath of Hurricane Sandy. We will hold two more upcoming consultation clinics:

Monday December 10, 2012 and Monday December 17, 2012.

Two sessions will be held each day:10am-12noon and 3:30pm-6pm.

Please volunteer for one of these sessions.

Attorney Volunteers are sought to assist in the following areas:
- Insurance Claims
- FEMA Assistance and Grants
- Bankruptcy/Debt
- Consumer Protection Issues (contractors, etc.)
- Landlord/Tenant
- Foreclosure
- Health/ Disability/Personal Injury/Post-traumatic Stress Issues

Please contact sandyrecovery@nassaubar.org if you are able to volunteer for any of the above stated dates and times. We will then notify you with a confirmation. Your help will be greatly appreciated.

Thank you for your continued Cooperation and Support."

MORE ON HURRICANE SANDY

There was a recent discussion on a legal listerv that I am a member of regarding liability for fallen trees - the question was:

"Does anyone know if the neighbor was put on notice through certified mail that the tree was a possible danger; it then falls on the property owner’s yard. Luckily no property or personal damage. But it costs 1,200 to cut up and remove the tree.(it was a big tree).  Can the neighbor who was put on notice be responsible for that?"

And the answers were quite varied and it appeared that there were three different opinions:

1. The neighbor would be liable if it can be proved that the tree was defective and the neighbor was at fault.

2. The property owner is always responsible for removal and notice to neighbor does not shift responsibility.

3. If notice was given, the neighbor would be responsible and there would be no need to establish fault.

MORTGAGE FORECLOSURE CLINIC IN NASSAU COUNTY

Unfortunately, I cannot volunteer today but please note:

"Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources.

In addition to meeting one-on-one with a volunteer attorney, housing counselors, bankruptcy attorneys and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- are on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070. Please bring your mortgage documents. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."

NEW YORK MATRIMONIAL - NO FAULT DIVORCE

The Appellate Division, Fourth Judicial Department earlier this month released a decision in Palermo v Palermo 2012 NY Slip Op 07528 in which it affirmed a trial court decision which held that there is no right to litigate the allegation that a marriage has irretrievably broken down under New York’s no-fault divorce law.

MORE ON HURRICANE SANDY

From the Nassau County Bar Association:

""WE CARE", the charitable arm of the Nassau County Bar Association, has made a generous donation to provide assistance to members of the legal community of Nassau County suffering from Super Storm Sandy.

Administrative Judge Marano has formed a committee comprised of representatives of various segments of the Nassau County legal community who have donated funds, including the Association, COBANC, FOCO and the CSEA. The committee, chaired by former NCBA President Christopher McGrath, is working to gather information regarding the immediate needs of the legal community.

Any members of the Nassau County legal community requiring assistance to meet their immediate needs as a result of the impact of Super Storm Sandy should mail, email or fax the following information to:

Nassau County Bar Association
Attention: Super Storm Sandy Committee
15th and West Street
Mineola, NY 11501
Fax: (516) 747-4147
Email: sandyfund@nassaubar.org

Please include your name, work location, the nature of your loss, and whether such damages may be covered under insurance or FEMA. The information will be kept confidential.

In the event you were fortunate enough to have survived the storm relatively damage free, please consider a donation to WE CARE to assist in this worthy endeavor. We can help make a difference."

P.S. For myself, in the event of future outages, I just had a transfer switch installed for a generator.

MORE ON HURRICANE SANDY

Many homes in Nassau and other suburban areas are what is commonly known as high ranch or split-level. Is the first floor considered a basement? Superstorm Sandy and insurance issues are discussed in the following article from Newsday:

In Oceanside, painful insurance lesson on basements

MORE ON HURRICANE SANDY

This question came up frequently yesterday when I volunteered at the NCBA Sandy Clinic and is addressed at the FEMA FAQ website:

"Will FEMA provide additional rental assistance beyond the initial assistance period if I still cannot return to my home?

Rental assistance can be provided for a period of up to 18 months while you are working to accomplish your permanent housing plan. To make an initial request for additional rental assistance, send a letter explaining your continuing need and provide rent receipts or other documents to show you have exhausted your initial rental assistance."

MORE ON HURRICANE SANDY

I will be a volunteer lawyer today at the second free legal clinic for all Nassau County Residents affected by Superstorm Sandy at the Nassau County Bar Association.

For more information, see this flyer:

SUPERSTORM SANDY RECOVERY CLINICS

HAPPY THANKSGIVING!

Mousepad - Thanksgiving Turkey Lawyer by thanksgiving_tshirts
See more Thanksgiving Mousepads

MORE ON HURRICANE SANDY

NOTE: federal disaster unemployment assistance (DUA) is now available for residents of many NY counties who lost their job or income due to Hurricane Sandy. Anyone unemployed as a result of Hurricane Sandy can submit a claim to the Department of Labor. The criterion for collecting disaster assistance is broader than for collecting regular unemployment benefits. Specifically, an individual can collect disaster assistance in any of the following cases:

• Injured in the disaster and unable to work, whether the person is an employee or self-employed.
• Workplace is damaged, or destroyed, or the person cannot work because of the disaster.
• Transportation to work is not available because of the disaster.
• Cannot get to work because they must travel through the affected area, which is impossible due to disaster.
• Scheduled to begin working, but cannot because of the disaster.
• Derived most of income from areas affected by the disaster, and business is closed or inoperable because of the disaster.
• Is not otherwise eligible for regular unemployment benefits.

However, this list is not exhaustive, and if someone is uncertain about eligibility, he or she is encouraged to apply. All applicants will be required to submit wage information and documentation supporting their application.

Note the emphasis supplied...this assistance also covers the self employed. Last week, Governor Cuomo announced an extension from December 3, 2012 to February 4, 2013 to apply for DUA. Claimants have up to 90 days to submit proof of employment or self-employment and will be provided an IRS link to expedite the retrieval of lost or destroyed tax documents.

MORE ON HURRICANE SANDY

I will be a volunteer lawyer today at a free legal clinic for all Nassau County Residents affected by Superstorm Sandy at the Nassau County Bar Association.

For more information, see this flyer:

SUPERSTORM SANDY RECOVERY CLINICS

MORE ON HURRICANE SANDY

Yesterday , the New York State Bar Association presented a free CLE webcast on Providing Legal Assistance to Persons Affected by Superstorm Sandy from 4:00 p.m. - 7:00 p.m. The program was streamed live from the State Bar Center in Albany.

One of the first issues discussed was Insurance Considerations: Homeowners Insurance, Flood Insurance, Renters Insurance, etc. And today in Newsday, I note the following regarding how the winds were still powerful enough to trigger higher insurance deductibles that could cost homeowners thousands of dollars:

Insurance deductibles snag in Sandy winds - NEWSDAY

MORE ON HURRICANE SANDY

Today on Thursday, November 15, 4-7 p.m. there will be a free CLE training webcast that will be streamed live from the New York State Bar Association in Albany. This special program will provide an overview of state and federal relief programs, including FEMA, American Red Cross, US Coast Guard, IRS, US SBA, NYS departments of labor and financial services, and disaster legal services. In addition, the program will cover legal considerations for insurance, housing and landlord/tenant issues, and advising clients in disaster relief situations. Participants may earn 2.0 MCLE credits in professional practice and skills. (This program is also available online, and an archived version of the program will be available online after the program.)

NEW YORK UNEMPLOYMENT INSURANCE - WORK PERFORMANCE

The Department of Labor states in Section 1100 of the Electronic Interpretation Service Index:

"Notwithstanding the broad concept of misconduct now applied, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

Mere inefficiency,

Inadequate performance as the result of inability or incapacity,

Inadvertence or ordinary negligence in isolated instances,

Good faith errors in judgement or discretion.

On the other hand, even inadequate performance may be misconduct if it can be shown that it resulted from gross negligence, indifference, or recurrent carelessness."

NEW YORK UNEMPLOYMENT INSURANCE - WORK PERFORMANCE

I have a hearing today.

The issue - when does poor work performance constitute misconduct.

VETERANS DAY

From Wiki:

"U.S. Representative Ed Rees from Emporia, Kansas, presented a bill establishing the holiday through Congress. President Dwight Eisenhower, also from Kansas, signed the bill into law on May 26, 1954.

Congress amended this act on June 1, 1954, replacing "Armistice" with "Veterans," and it has been known as Veterans Day since.

......................

Although originally scheduled for celebration on November 11 of every year, starting in 1971 in accordance with the Uniform Monday Holiday Act, Veterans Day was moved to the fourth Monday of October. In 1978, it was moved back to its original celebration on November 11. While the legal holiday remains on November 11, if that date happens to be on a Saturday or Sunday, then organizations that formally observe the holiday will normally be closed on the adjacent Friday or Monday, respectively."

MORE ON HURRICANE SANDY

Regarding matrimonial actions in Nassau County:

"MEMO TO MATRIMONIAL COMMITTEE MEMBERS IN THE AFTERMATH OF HURRICANE SANDY

 I hope you have all been able to get through the last week or so. Many of us were shut down as was the Matrimonial Center. This-- on top of addressing our needs at home as our personal life reminds us of that which is also important to us and which it seems most clients do not appreciate. 

The Governor has issued an executive order addressing suspension of certain statutes of limitations. See the link as follows from the NYSBA site : http://www.nysba.org/AM/Template.cfm?ContentID=116762&Section=Home&template=/CM/ContentDisplay.cfm

As we continue to recover, let us give our cooperation to each other and to our judges and court personnel to get things civilly back on track. We all need to get up and running with client pressure abounding and the courts will no doubt be more stressed for time then even before. 

I addition, Justices Marano and Zimmerman have been working with our judges, clerks, officers and other court personnel to address the additional problems created by the storm and its aftermath. The following is being undertaken on an emergency basis:

Until telephone service has been restored to the Mat Center, unless a judge receives a request for an adjournment by fax or by an appearance, the court will adjourn cases which were scheduled for last week and for this week for approximately 30 days. It is Justice Zimmerman's preference that the one phone line that has been made available for the public be used for emergencies and not for adjournments. Any request for adjournments for a specific date will be granted by the parts for the date requested. At this time, no written orders will be coming from the parts with the new dates. The court emphasizes that these are emergency procedures which are subject to change. These procedures also apply to trials and hearings.

I would again thank our bench and bar for all of the anticipated patience and cooperation during this difficult time.

Lee Rosenberg

Saltzman Chetkof & Rosenberg LLP
300 Garden City Plaza, Ste. 130
Garden City, NY 11530
516-873-7200
www.scrllp.com

Fellow, American Academy of Matrimonial Lawyers

Chair, Nassau County Bar Association Matrimonial Law Committee"

 

MORE ON HURRICANE SANDY

Yesterday, Governor Andrew M. Cuomo announced extensions provided by the State Liquor Authority and the Department of Environmental Conservation for license renewals and permit applications for businesses in impacted regions of the state. In addition, the state agencies are providing certain waivers for fees and extensions for payments.

See this link:

Governor Cuomo Announces Extensions for State Permits, License Renewals and Payments for Businesses Impacted by Hurricane Sandy

MORE ON HURRICANE SANDY

The Nassau County Bar Association announced the following:

"Third, we are in the process of planning a series of Superstorm Sandy Clinics for Nassau residents adversely affected by recent events. Attorney volunteers are sought in the areas of:

•Homeowner, flood, property damage and automobile insurance claims

•FEMA assistance and grants

•Debt deferral

•Bankruptcy

•Consumer Protection issues (contractors, etc.)

•Landlord-Tenant

•Assistance in dealing with lenders to avoid foreclosure

•Legal assistance for health/disability/personal injury/post-traumatic stress issues

•Pro bono ADR for neighbor disputes arising from the storm.

SNYSBA is also administering a hotline with the concept that local bar associations and lawyer referral services will be in a better position to assist those in need. We intend to participate in this effort and need your assistance. Please volunteer your time by contacting NCBA or emailing sandyrecovery@nassaubar.org and we will provide you with information about upcoming clinics. Training will be available for various services outside ordinary areas of practice. If your current situation does not permit volunteering at this time but you wish to volunteer in the future, email us now and give us an approximation as to when you will be available. This disaster is not going away tomorrow. We anticipate that the need for our pro bono services will exist well into next year and beyond."

MORE ON HURRICANE SANDY

One hears many rumors, etc. as to what relief is available. The website of Governor Andrew M. Cuomo appears to me to have the best links to resources, information, etc.

Governor Andrew M. Cuomo

MORE ON HURRICANE SANDY

From FEMA, here is a summary of key federal disaster aid programs that can be made available as needed and warranted under President Obama’s major disaster declaration issued for New York: Federal Aid Programs for State of New York Disaster Recovery

MORE ON HURRICANE SANDY

Governor Cuomo issued a "Temporary Suspension and Modification of Statutory Provisions Establishing Time Limitations on Actions and Time in Which to Take an Appeal".

For more information, see this Executive Order:

Executive Order 52 - Temporary Suspension and Modification of Statutory Provisions Establishing Time Limitations on Actions and Time in Which to Take an Appeal

A NOTE ON SANDY AND HOMEOWNERS INSURANCE

Although I am not a specialist in insurance law, I pass this along as I have received inquires as to what damages from Sandy are covered by homeowners insurance. The following is as reported on NBC New York: 

"New York homeowners will not have to pay potentially debilitating hurricane deductibles on insurance claims stemming from damage caused by Sandy, Gov. Cuomo said Thursday.

The New York State Department of Financial Services has informed the insurance industry that hurricane deductibles should not be triggered for the Superstorm, which will prevent coastal homeowners from having to pay deductibles in their insurance policies, Cuomo said.

Many homeowners’ insurance policies for homes located in downstate areas contain hurricane deductibles based on a percentage of a property’s insured value. These deductibles typically range from one percent of a home’s insured value to five percent. So for example, with a five percent deductible on a home insured for $300,000, the homeowner would have to pay for the first $15,000 of damage.

Superintendent of Financial Services Benjamin Lawsky said the state told the insurance industry that deductibles weren't triggered because Sandy did not sustain hurricane-force winds when it hit New York.

"We will be working with insurers to help them respond as quickly as possible to homeowners who need to file claims. And we will be sending our mobile command center to hard hit areas to help consumers with insurance questions and problems,” Lasky said.

DFS urges homeowners who experienced property losses to file insurance claims with their insurers as soon as possible after losses occur. It is important to provide policy numbers and all information relevant to the loss. To best document losses, homeowners should take photos or videos showing the extent of the losses before cleaning up damage.

Homeowners should make only necessary repairs to prevent further damage to property, like covering broken windows. Permanent repairs should not be made until after insurers have inspected losses. Damaged personal property should be kept until after an insurance settlement has been reached.

Homeowners are also reminded that flood damage is only covered by flood insurance, which is a federal program administered by FEMA. Homeowners who have flood insurance and have flood damage should make claims through that insurance.

DFS will be sending its mobile command center to hard hit areas to help consumers with insurance questions and problems.

DFS has activated a Disaster Hotline to answer consumer questions and help with problems. The Disaster Hotline number is 800-339-1759. It is staffed Monday – Friday from 8 AM – 8 PM and Saturday - Sunday from 9 AM – 4 PM.

Homeowners unable to resolve disputes with insurers can file complaints at http://www.dfs.ny.gov/consumer/fileacomplaint.htm."

BACK TO WORK

Electricity has returned and back to work!

SANDY!

We are in but with limited power. We can only return phone calls.
Stay safe!

SELLING A HOME IN TODAY'S MARKET

But if the Property Disclosure Statement is not delivered to the Buyer (and Buyer receives $500 credit) or if the disclosure regarding the Certificate of Occupancy is marked "Unknown", what is the next step for the Buyer?

PRO BONO FAIR AT NASSAU COUNTY BAR ASSOCIATION

The Nassau County Bar Association invite all Nassau County residents to a Free Legal Fair. Attorneys knowledgeable in many areas of law will be available to meet with residents to provide information. Attorneys do not provide legal representation but residents are invited to bring their questions. To be held at the The Nassau County Bar Association in Mineola, NY. Registration required by calling 516-747-4070. More info at www.nassaubar.org

I will be a volunteer attorney from 3-5.

MY DAY AS AN ARBITRATOR

The New York State Court System has established a Statewide Fee Dispute Resolution Program (FDRP) to resolve attorney-client disputes over legal fees through arbitration (and in some cases mediation).

Yesterday, I was honored to be appointed as an arbitrator in a fee dispute. It is also very instructive.

SELLING A HOME IN TODAY'S MARKET

Thus the Property Disclosure Statement, if delivered, would advise the Buyer as follows:

"9. Are there certificates of occupancy related to the property? If No, explain below . . . . . . . . .
            Yes             No                Unkn                  NA"

SELLING A HOME IN TODAY'S MARKET

Of course, if the Seller does not have all C of O's and furnishes a Property Disclosure Statement, the the Buyer should be advised of this issue.

RECENT ARTICLE

A mention (see 1976) in the recent alumni magazine publication "De Novo" from St. John's University School of Law:

SELLING A HOME IN TODAY'S MARKET

Now if the Seller and Buyer want to go to contract but the Seller does not have all C of O's, should the Seller first inform the Buyer?

SELLING A HOME IN TODAY'S MARKET

Note the statement from yesterday's post: "Many banks and lending institutions require an up-to-date Certificate of Occupancy before they will issue a mortgage."

However, even if no bank was involved, even if a bank was involved and did not require the C of O, every Buyer should insist upon it.

SELLING A HOME IN TODAY'S MARKET

Basically, a certificate of occupancy is a document issued by a local government agency or building department certifying a building's compliance with applicable building codes and other laws, and indicating it to be in a condition suitable for occupancy. I refer to a discussion in the website of a New York engineering firm Heimer® Engineering PC:

"When all the requirements of the building code and all other local municipal requirements have been met, a Certificate of Occupancy is issued. The Certificate of Occupancy generally means that the building complies with all codes and regulations applicable at the time of construction.

Prior to issuing the Certificate of Occupancy, a building inspector has probably checked the construction project several times during the project. Even so, the Certificate of Occupancy is not a guarantee from the building department that the building is perfect. The inspection is limited to areas that could be examined during the building inspector's inspection. The Certificate of Occupancy gives you some assurance that the building complied with applicable codes and regulations at the time of construction.

Many banks and lending institutions require an up-to-date Certificate of Occupancy before they will issue a mortgage. In some cases a Certificate of Occupancy cannot be issued because no building permit was issued prior to construction, and the building inspector was not called in during construction. In these cases, the building department may issue a Certificate of Alteration, Certificate of Compliance, or Certificate of Completion. A similar document may be issued for outside items like decks and pools, or inside items like a wood burning stove. Consult your local building department for more information if you are looking at a building that has been altered."

SELLING A HOME IN TODAY'S MARKET

Here is a problem I have discovered in two different residential sales. It is based on the following clause that is contained in the standard RESIDENTIAL CONTRACT OF SALE Jointly Prepared by the Real Property Section of the New York State Bar Association, the New York State Land Title Association, the Committee on Real Property Law of the Association of the Bar of the City of New York and the Committee on Real Property Law of the New York County Lawyers' Association. (11/00):

" 16. Conditions to Closing. This contract and Purchaser's obligation to purchase the Premises are also subject to and conditioned upon the fulfillment of the following conditions precedent:

........................

(b) The delivery by Seller to Purchaser of a valid and subsisting Certificate of Occupancy or other required certificate of compliance, or evidence that none was required, covering the building(s) and all of the other improvements located on the property authorizing their use as a family dwelling at the date of Closing."

SELLING A HOME IN TODAY'S MARKET

In Nassau County, the custom is to have the Seller's counsel draft the contract of sale. Counsel will usually send it to Buyer's counsel with the following language:

"Attached please find the proposed Contract of Sale.

If the Contract meets with your clients' approval, please forward four (4) originally executed copies to me, together with the down payment check in the sum of $XXXXXXX, payable to "YYYYYYY, as attorney". I will then review the terms with my clients and, provided the terms are acceptable, I will have them execute the Contracts and return two (2) fully executed copies to you. I will deposit the escrow check at the time I forward the fully executed copies to you at which time the Contract shall be binding."

SELLING A HOME IN TODAY'S MARKET

The two cases cited and discussed illustrate the ambiguity that may arise when contracts are "in the mail" but not yet signed.

This is a common practice in many types of agreements - rather than having a sit down contract execution, arrangements are made through the mail.

But when residential sale contracts are executed that way, an issue may then arise as to when a binding contract exits.

SELLING A HOME IN TODAY'S MARKET

The decision in Church of God v. 4TH CHURCH, 76 AD 2d 712 (App. Div. 2nd Dept. 1980):

"This is an appeal by the defendant from a judgment of the Supreme Court, Kings County, which awarded the plaintiff money damages for breach of a contract to sell real property owned by the defendant and upon which its church edifice was erected. The plaintiff cross-appeals from so much of the judgment as failed to direct specific performance of the contract.

Because of a decline in its membership the defendant, Fourth Church of Christ, Scientist, of Brooklyn, New York, decided to sell its house of worship and move to a smaller facility which it also owned. Plaintiff, Church of God of Prospect Plaza, offered to buy the real property and, after negotiations, defendant's membership voted unanimously to sell the same in accordance with plaintiff's offer. In accordance with defendant's instructions, its attorneys prepared a proposed contract and sent it to plaintiff. Plaintiff executed the contract and returned it with a deposit according to the instructions given by the attorneys for the defendant.

At about the same time, defendant received an offer from a sister church to merge their congregations and also received an all cash offer for the property from yet another prospective purchaser. Subsequent to the return of the contract signed by the plaintiff, defendant's membership voted to consolidate with the sister church and to rescind the acceptance of plaintiff's offer. The contract was never executed by the defendant.

In light of the merger, plaintiff was content to forego its rights to purchase the property, but when it subsequently developed that the merger was not permitted by defendant's mother church and defendant entered into a contract of sale with the other buyer which had made an "all cash" offer, plaintiff decided to commence this action. In fact, the merger was eventually approved, the contract between defendant and the second offeree was canceled and that offeree purchased the property of defendant's sister church. Defendant's attorneys, who had obtained court leave approving all the transactions except the contract with the plaintiff, never informed the court of the plaintiff's status.

On a prior appeal in this action, we reversed an order granting summary judgment to the defendant and remitted the action to determine whether certain signed corporate minutes of the defendant authorizing the sale constituted a sufficient memorandum of the contract of the parties to satisfy the Statute of Frauds (Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 59 AD2d 732). Pursuant to court-ordered discovery, plaintiff obtained the defendant's signed corporate minutes authorizing the sale and thereafter it sought summary judgment. Special Term held that the "corporate minutes were duly executed and constituted a sufficient signing to satisfy the Statute of Frauds and an adequate acceptance of the plaintiff's offer" and it set the action down for a determination of the fairness of the contract and as to whether there were any valid reasons for refusing plaintiff's request for performance of the agreement (see Religious Corporations Law, § 12). After an evidentiary hearing the Referee determined that the contract was fair and enforceable and offered the defendant an alternative of either specifically performing the contract or paying damages in the amount of the difference between the contract price of $150,000 and the fair market value of $225,000 at the date of the hearing, plus plaintiff's attorney's fees. The judgment appealed from was entered in accordance with the defendant's election to pay damages.

The corporate minutes of the defendant indicate that its membership unequivocally accepted the offer of the plaintiff to purchase its church property on the terms proposed by the plaintiff. Although the vote of defendant's membership constituted an acceptance, such acceptance was not effective until communicated to plaintiff (see White v Corlies, 46 N.Y. 467, 469; 1 Corbin, Contracts, § 67; Simpson, Contracts [2d ed], § 36). At defendant's direction, its attorneys sent plaintiff a written instrument for execution on its behalf which embodied the same terms as had been proposed by plaintiff and agreed upon at defendant's membership meeting. The sending of the transmittal letter and this formal written instrument for execution constituted sufficient notice of acceptance.

Defendant contends that it never intended to be bound until the written contract was executed by both parties. In determining whether the parties entered into a contract, it is necessary to examine the words and deeds of the parties which constitute the objective manifestations of their intent 715*715 (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 N.Y.2d 397, 399). A review of the record demonstrates that the parties had come to a meeting of minds on the terms of their contract and all that remained was the mere memorialization of their agreement in a formal document. As the Court of Appeals explained in the case of Matter of Municipal Consultants & Publishers v Town of Ramapo (47 N.Y.2d 144, 148-149): "Generally, where the parties contemplate that a signed writing is required there is no contract until one is delivered (Scheck v Francis, 26 N.Y.2d 466; Schwartz v Greenberg, 304 N.Y. 250). This rule yields, however, when the parties have agreed on all contractual terms and have only to commit them to writing. When this occurs, the contract is effective at the time the oral agreement is made, although the contract is never reduced to writing and signed. Where all the substantial terms of a contract have been agreed on, and there is nothing left for future settlement, the fact, alone, that it was the understanding that the contract should be formally drawn up and put in writing, did not leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed (Disken v Herter, 73 App Div 453, affd 175 N.Y. 480; 1 Williston, Contracts, § 28; see, also, Matter of Meister, 39 AD2d 857, affd 32 N.Y.2d 626; Belmar Contr. Co. v State of New York, 233 N.Y. 189, 194)." Neither the minutes of the defendant's corporate meeting at which plaintiff's offer was accepted nor the transmittal letter expressly or impliedly reserved the effectiveness of the agreement until the formal contract was signed. Accordingly, we find that the parties duly contracted for the sale of defendant's church edifice to plaintiff.

Defendant next contends that that contract is unenforceable by reason of the Statute of Frauds (see General Obligations Law, § 5-703, subd 2). It is our opinion, however, that the plaintiff's written offer, the signed corporate minutes of the defendant accepting the terms of that offer and the formal unsigned contract prepared by defendant's attorneys which unequivocally refers to the same transaction, when read together, constitute a sufficient memorandum of the contract to satisfy the Statute of Frauds (see Scheck v Francis, 26 N.Y.2d 466, 470-471; Crabtree v Elizabeth Arden Sales Corp., 305 N.Y. 48, 54-56; DFI Communications v Greenberg, 41 N.Y.2d 602, 606-607).

The next question is whether the Referee to hear and determine erred in granting approval of the contract between plaintiff and defendant pursuant to the provisions of certain relevant statutes. Subdivision 1 of section 12 of the Religious Corporations Law provides that in order to sell any of its real property, such a corporation must apply for and obtain leave of court pursuant to section 511 of the Not-For-Profit Corporation Law. Subdivision (d) of section 511 provides that the court may authorize the sale if it appears to the court's satisfaction that: "the consideration and the terms of the transaction are fair and reasonable to the corporation and that the purposes of the corporation or the interests of the members will be promoted [thereby]".

The law is clear that a religious corporation can enter into a valid contract for the sale of its real property without first obtaining court approval (Muck v Hitchcock, 149 App Div 323, 328-329, revd on other grounds 212 N.Y. 283; Congregation Beth Elohim v Central Presbyt. Church, 10 Abb Prac [NS] 484, 488-489; Sun Assets Corp. v English Evangelical Lutheran Church of Ascension of Borough Park, Brooklyn, 19 Misc 2d 187, 192). Although a court of equity may decree specific performance of an executory contract for the sale of the real property of a religious corporation (Muck v Hitchcock, 149 App Div 323, 328-329, supra; Sun Assets Corp. v English Evangelical Lutheran Church of Ascension of Borough Park, Brooklyn, supra, p 192; Bounding Home Corp. v Chapin Home for Aged & Infirm, 19 Misc 2d 653; Congregation Beth Elohim v Central Presbyt. Church, supra, p 490), it must first determine, in accordance with subdivision (d) of section 511 of the Not-For-Profit Corporation Law, that the terms and consideration of the transaction are fair and reasonable and that the purposes of the corporation or interests of its members will be promoted by the sale (cf. Associate Presbyt. Congregation of Hebron v Hanna, 113 App Div 12, 14). The purpose of this requirement is to protect the members of the religious corporation, the real parties in interest, from loss through unwise bargains and from perversion of the use of the property (Bowen v Trustees of Irish Presbyt. Congregation in City of N. Y., 6 Bosw 245; Muck v Hitchcock, 212 N.Y. 283, 287, supra; Congregation Beth Elohim v Central Presbyt. Church, supra, pp 488-489; Madison Ave. Baptist Church v Baptist Church in Oliver St., 1 Abb Prac [NS] 214, 224; Reformed Prot. Dutch Church in Garden-St. v Mott, 7 Paige Ch 77, 83-84).

It thus appears that the Legislature intended the test to have two prongs. First, the court must determine that the terms and consideration of the transaction were not unwise. In assessing the prudence of the bargain, it is our view that the court should look to the conditions prevailing at the time it was struck. Measured in that light, we agree with the Referee that the contract between plaintiff and defendant was fair and reasonable when made. However, the second prong of the test requires the court to determine that the sale would benefit the corporation or that the best interests of its members would be promoted thereby. We hold that in applying this second prong of the test the court may consider whether corporate purposes would have been served or the best interests of the membership promoted at the time the contract was made, but it should be guided primarily by whether those ends would be realized in light of conditions prevailing at the time the issue is presented to the court (cf. Wilson v Ebenezer Baptist Church, 17 Misc 2d 607, 608-609). Examined in this light, it clearly appears that conveyance of defendant's church edifice would now be highly detrimental to the purpose of the corporation and the interests of its members. Sale is now unanimously opposed by defendant's membership because the congregation has merged with another congregation that sold its church as part of the consolidation. Specific performance of this contract would leave the combined congregation of two churches without a house of worship.

It has been said that in making the determination required by section 12 of the Religious Corporations Law and section 511 of the Not-For-Profit Corporation Law the court must either "ratify or veto" the contract of the parties (Matter of Minister, Elders & Deacons of Ref. Dutch Church in Saugerties, 16 Barb 237, 241-242). In the case of Congregation Beth Elohim v Central Presbyt. Church (10 Abb Prac [NS] 484, 492-493, supra), the court clearly explained that although a contract made by a religious corporation for the sale of its property is valid, it is "liable * * * to be defeated" where the court finds it not to be in the best interests of the membership and that where consent to the alienation of the property has been withheld by the court, the contract of sale is "inoperative". It thus appears that contracts for the sale of the real property of a religious corporation are valid, subject to being defeated by the veto of the court, i.e., they are voidable by the court where the two-pronged test of subdivision (d) of section 511 of the Not-For-Profit Corporation Law 718*718 has not been met. For the reasons stated above, we cannot approve the sale of defendant's property under the present conditions and therefore the contract of sale between it and plaintiff is vetoed and rendered inoperative.

By this determination we do not wish to be understood as holding that a religious society may, at its whim, change its mind as to the sale of its real property after it has entered into a contract of sale but before the requisite court approval has been obtained. Where the seller refuses to perform and the buyer sues for specific performance, the trial court must satisfy itself that the test prescribed in subdivision (d) of section 511 of the Not-For-Profit Corporation Law has been met before awarding relief to the plaintiff. Such a determination must be made on a case-by-case basis because it entails the assessment of differing and often complex facts. Suffice it to say that where the terms and price are reasonable and the sale is only opposed by the membership because of a slightly better offer from some other party, a court of equity should not hesitate to approve the contract and decree specific performance. But where, as here, the sale is opposed by the membership because of merger with another church and the combined congregations now use the edifice, the contract is not in the present best interests of the membership and must be disapproved.

The final issue raised by defendant concerns the question of the money damages awarded by the Referee. Since the contract has been voided, that issue has become academic.

Accordingly, the judgment appealed from should be reversed and plaintiff's complaint dismissed.

Judgment of the Supreme Court, Kings County, entered July 5, 1979, reversed, on the law and the facts, without costs or disbursements, and plaintiff's complaint is dismissed."

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Another interesting case as to when a contract exists is Church of God v. 4TH CHURCH, 76 AD 2d 712, (App. Div., 2nd Dept. 1980).

COLUMBUS DAY

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The conclusion in "184 JORALEMON LLC, Plaintiff, v. BROOKLYN LAW SCHOOL, Defendant. 31 Misc 3d 1201(A) Supreme Court, Kings County. Decided March 28, 2011": "

Defendant's motion to dismiss pursuant to CPLR 3211 (a) (1), (5) and (7) is granted in its entirety. Provided that no timely appeal is taken, defendant's motion to cancel the notice of pendency pursuant to CPLR 6514 (a) is granted and the Kings County Clerk is directed to cancel the notice of pendency thirty days from the date a copy of this order is served upon plaintiff. Defendant's motions pursuant to CPLR 6514 (c) and Rule 130-1.1 of the Chief Administrator are denied. This constitutes the decision, order, and judgment of the court."

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The legal discussion in "184 JORALEMON LLC, Plaintiff, v. BROOKLYN LAW SCHOOL, Defendant. 31 Misc 3d 1201(A) Supreme Court, Kings County. Decided March 28, 2011":
"Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (1), based upon documentary evidence, CPLR 3211 (a) (5), as precluded by the statute of frauds, and CPLR 3211 (a) (7), for failure to state a cause of action.
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. (Leon v Martinez, 84 NY2d 83, 87-88 [1994]) (internal quotations and citations omitted).
In support of its motion to dismiss pursuant to CPLR 3211 (a) (1), defendant submits the Agreement, which defendant claims conclusively establishes that the Agreement, by its terms, was not intended to be valid and enforceable until executed by both parties. Defendant also claims the email communications between the parties, wherein defendant's counsel informed plaintiff's counsel that he would forward the Agreement to Wexler for approval, and Wexler, knowing that plaintiff had executed the Agreement and wired the funds into an escrow account, clearly stated that she wished to review the Agreement once more before executing it, evidence a lack of finality in the negotiation of terms and that the Agreement remained subject to review by defendant.
"[I]f the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed. Moreover, when the parties' intent to be bound by a contractual obligation is determinable by written agreements, the question is one of law. A question of fact arises as to the parties' intent to enter into an enforceable obligation only where the intent must be determined by disputed evidence or inferences outside the written words of the instrument"(ADCO Elec. Corp. v HRH Const., LLC, 63 AD3d 653, 654 [2d Dept 2009] [internal quotations and citations omitted]; see Scheck v Francis, 26 NY2d 466, 470 [1970]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2d Dept 2007]; Feldman v Miller, 168 AD2d 597, 598 [2d Dept 1990]; Yenom Corp. v 155 Wooster St. Inc., 23 AD3d 259, 259-260 [1st Dept 2005]).
Here, there is no disputed question of fact. Section 28 of the Agreement evinces the parties' clear intent not to be bound until the execution of the Agreement by both parties and disproves plaintiffs' central claim that an enforceable obligation had arisen. It is undisputed that defendant did not execute the Agreement. It is also undisputed that plaintiff did execute the Agreement, thereby accepting the explicit language in section 28 barring enforcement of the Agreement until duly executed by both parties. Moreover, the emails of both defendant's president and its counsel unambiguously state their intent to review the Agreement further prior to executing it. As the Agreement was ultimately not executed by defendant, and the clear terms of the Agreement itself established that only execution by both parties would render the contract binding and enforceable, and the defendant's president had explicitly stated that execution remained contingent upon further review, Wexler's vague, general statements that "I am confident all will be fine" and "We'll be good," are insufficient to raise a question of fact as to whether a meeting of the minds took place.
In opposition to defendant's motion, plaintiff argues that the statute of frauds does not require dismissal of the complaint, citing a number of inapposite cases (see generally Denton v Clove Valley Rod & Gun Club, Inc., 95 AD2d 844 [2d Dept 1983]; St. Paul Indus. Park, Inc. v New York State Urban Dev. Corp., 63 AD2d 822 [4th Dept 1978], Korin Group v Emar Bldg. Corp., 291 AD2d 270 [1st Dept 2002]; Municipal Consultants & Publishers, Inc. v Town of Ramapo, 47 NY2d 144 [1979]; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712 [2d Dept 1980]). Denton merely recognized that, in some circumstances, an unsigned contract combined with other writings, can constitute a written memorandum capable of satisfying the statute of frauds. However, there is no indication that the unsigned contract in Denton contained the language present here of the condition precedent to enforceability that both parties have executed the agreement. In both St. Paul Indus. Park, Inc. and Korin Group, summary judgment was denied upon a finding of factual disputes relating to a claim of equitable estoppel. Again, there is no mention of the unequivocal contractual provision present here. None of these cited cases are contrary to the fundamental rule that, when parties unambiguously express their intent to only be bound by a duly executed, written contract, no binding contract will arise or can be inferred until the contract is executed by both parties. In both Municipal Consultants & Publishers, Inc. and Church of God of Prospect Plaza, the courts expressly acknowledge this well-settled principle. Apropos of the instant suit, in Municipal Consultants & Publishers, Inc., the court stated: "[w]here all the substantial terms of a contract have been agreed on, and there is nothing left for future settlement, the fact, alone, that it was the understanding that the contract should be formally drawn up and put in writing, did not leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed" (47 NY2d at 149 (emphasis added); see also Church of God of Prospect Plaza, 76 AD2d at 716). Here, section 28 of the Agreement contained the same explicit, positive language contemplated in the above cases: that the Agreement was not to have binding effect until it was executed by both parties.
"If documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action" (Peter F. Gaito Architecture, LLC, 46 AD3d at 530). Moreover, it has been held that where, as here, the written communications indicate that "the parties expressly contemplated the subsequent execution of a more complete and formal contract of sale," and no contract was executed, a meeting of the minds has not taken place and the exchange of correspondence will not satisfy the statute of frauds (Nesbitt v Penalver, 40 AD3d 596, 598 [2d Dept 2007]). Accordingly, defendant's motion pursuant to CPLR 3211 (a) (1), (5) and (7) is granted.
Defendant also moves, pursuant to CPLR 6514, to cancel the notice of pendency. CPLR 6501 provides that a notice of pendency may be filed where "the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property." The instant action seeks specific performance of an alleged agreement to transfer title to real property. Thus, filing a notice of pendency was appropriate under the circumstances. Under CPLR 6514 (a), the court must direct the cancellation of a notice of pendency "if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a final judgment against the plaintiff has not been stayed pursuant to section 5519." As this court has granted defendant's motion to dismiss the complaint, the notice of pendency must be cancelled pursuant to CPLR 6514 (a) upon the expiration of thirty days from service of a copy of this Order unless an appeal is taken and cancellation is stayed pursuant to CPLR 5519 (see Greven v Muir,128 AD2d 753 [2d Dept 1987]; Yenom Corp., 23 AD3d at 260; Zafarani v Gluck, 10 Misc 3d 1073(A), 2006 WL 140716 at *4 [Sup Ct, Kings 2006], aff'd 40 AD3d 1082 [2d Dept 2007]).
Defendant contends that immediate cancellation of the notice of pendency is appropriate, irrespective of the time to appeal, under CPLR 6514 (b), which permits the court, in its discretion, to cancel a notice of pendency, "if the plaintiff has not commenced or prosecuted the action in good faith." However, although this court has found that the documentary evidence established that no contract was formed, in light of the fact that defendant continued to hold plaintiff's deposit at the time the action was commenced, it cannot be said that the action was brought in bad faith. At the time plaintiff filed the complaint, defendant had not refunded from the escrow account the deposit of $1,840,000 made by plaintiff in its attempt to purchase the Property. Thus, plaintiff maintained a legitimate hope that the contract might yet be performed and the filing of the lis pendens was not inappropriate. At the least, plaintiff had a right to seek recovery of its deposit. Accordingly, defendant's motion pursuant to CPLR 6514 (b) must be denied.
Defendant's request for costs pursuant to CPLR 6514 (c) is similarly denied as it has not been demonstrated that the notice of pendency was wrongly filed in this action (Shkolnik v Krutoy, 65 AD3d 1214, 1216 [2d Dept 2009]; No.1 Funding Ctr, Inc. v H & G Operating Corp., 48 AD3d 908, 911 [3d Dept 2008] ("The purpose of CPLR 6514(c) is to reimburse a party for costs and expenses incurred as a result of a wrongful filing of a notice of pendency"); cf. Josefsson v Keller, 141 AD2d 700 [2d Dept 1988]).
Defendant's motion seeking the award of sanctions in the form of attorneys' fees, costs and disbursements, pursuant to 22 NYCRR 130-1.1, upon plaintiff's allegedly frivolous conduct in commencing and refusing to discontinue this action is also denied. "Conduct during litigation is frivolous and subject to sanction and/or the award of costs under 22 NYCRR 130-1.1 if it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law or . . . it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another'" (Miller v Cruise Fantasies, Ltd., 74 AD3d 919, 920-921 [2d Dept 2010], quoting Astrada v Archer, 71 AD3d 803, 807 [2d Dept 2010]). Although plaintiff's complaint has been dismissed, the circumstances here do not support a finding that the plaintiff's conduct in initiating suit was frivolous or that it brought the action solely to harass the defendant. Defendant's request for sanctions is denied."

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The factual background of "184 JORALEMON LLC, Plaintiff, v. BROOKLYN LAW SCHOOL, Defendant. 31 Misc 3d 1201(A) Supreme Court, Kings County. Decided March 28, 2011":

"This action arises out of plaintiff's attempted purchase of property owned by defendant located at 184 Joralemon Street, Brooklyn, New York (the "Property") and the disputed enforceability of a Proposed Agreement of Sale (the "Agreement"), executed on December 16, 2010 by plaintiff's member, Albert Laboz, but not by defendant, by which defendant purportedly agreed to sell plaintiff the Property for $9,200,000. Defendant claims that it did not execute the Agreement because it received a subsequent higher bid for the Property and had a fiduciary obligation to accept that bid.
Section 28 of the Agreement states: "BINDING EFFECT. The submission of this Agreement to Purchaser shall not be construed as an offer, nor shall Purchaser, or any other person, corporation, or other entity have any rights with respect thereto, unless and until both Seller and Purchaser shall have executed this Agreement, and a fully executed copy is delivered to Purchaser or his attorney" (Ex. C to Motion). Section 29 of the Agreement states: "It is understood and agreed that all understandings and agreements heretofore had between the parties hereto are merged into this Agreement . . ." (id.).

On Thursday, December 16, 2010, Edward Duffy, counsel for plaintiff, sent an email to Dennis Konner, counsel for defendant, at 1:39 PM stating, "I am attaching clean and marked versions of the revised purchase agreement. Please note that in the interest of speed I am sending it to my client simultaneously and it remains subject to his review and comment" (Ex. D to Motion).

That same day, at 2:01 PM, Konner responded, "Ed, Other than attaching the form of the student Housing License which should be removed, your changes are acceptable to us. Please add the Seller's FEIN-23-7227990 to the Escrow Agreement and add the Purchaser's FEIN if it is available. You should also date the Agreement and Escrow Agreement. Please send a clean and redlined version against the prior version so we can forward same to the Seller for approval." At 3:11 PM, Duffy replied, "Dennis, Per your voice mail, the attached shows all changes made today" (id.).

At 5:35 PM, Duffy then wrote, "Dennis, I am attaching the Agreement of Sale, executed by the buyer. The escrow agreement attached to the Agreement of Sale is also signed. I revised the Agreement to include counterpart languages, as we discussed; clean and marked versions are attached as well. Rather than increase the deposit under the contract to $2,000,000, we want to have refunded the $160,000 overpaid in the $2,000,000 wire sent to your firm's escrow account earlier today. Please wire the $160,000 in accordance with the wire instructions below and retain the remaining $1,840,000 in accordance with the terms of the Agreement of Sale and Escrow Agreement . . . . I will messenger three signed copies of the Agreement of Sale to your attention tomorrow. Thanks. We look forward to receiving the seller's signature pages" (id.). According to the complaint, on December 17, 2010, defendant's counsel, acting as Escrow Agent, refunded plaintiff the $160,000, retaining the remaining balance in accordance with the terms of the Agreement.
 
At 5:57 PM on December 16, 2010, Laboz sent an email to Frederick Cohen, another of defendant's counsel from Duane Morris LLP, and Joan Wexler, the president of Brooklyn Law School, containing only the subject heading, "Are we done?" At 8:50 PM, Wexler replied, "I just got home. I've been at meetings and then holiday parties tonight. Please forgive me. I haven't had a chance to review the latest contract. Tomorrow, again I will be out of the office, but Monday, I'll be back full strength and I will look it over. I am confident all will be fine." At 8:54 PM, Laboz responded, "My money was wired today. Don't be such a lawyer, you're more than adequately represented" to which Wexler replied, "Keep calm. We'll be good." At 9:01 PM, Laboz wrote, "I'll defer to you. We're ready when you are" (id.).

At a meeting on December 20, 2010, Wexler advised Laboz that defendant was declining to sign the contract and accepting a higher offer. At the time, defendant had not yet returned the $1,840,000 deposit.

Plaintiff filed a notice of pendency and commenced this action on December 30, 2010 by filing a summons and complaint, seeking specific performance of the Agreement and damages incurred from an alleged breach of contract. Defendant subsequently brought the instant motion, by order to show cause, and appeared for oral argument on March 9, 2011.

Plaintiff claims that, although unsigned by the defendant, the Agreement is valid and enforceable as it had been agreed to in principle and merely required execution, as evidenced by email correspondence between the parties. Defendant claims that, to be valid and enforceable, the Agreement must satisfy the statute of frauds and must have been executed by all parties, as required by the express language in the Agreement itself."

SELLING A HOME IN TODAY'S MARKET

Many buyers and/or sellers will raise the question as to when is there a valid contract of sale - do I have a deal or what?

Usually the pattern is that between long delays in negotiation, execution of contracts, deposit of down payment in escrow, etc., it can be confusing.

Here is one case. 184 JORALEMON LLC, Plaintiff, v. BROOKLYN LAW SCHOOL, Defendant. 31 Misc 3d 1201(A) Supreme Court, Kings County. Decided March 28, 2011 which starts out as follows:
  "Defendant Brooklyn Law School ("BLS") moves, by Order to Show Cause, for an order dismissing the complaint, pursuant to CPLR 3211 (a) (1), (5) and (7); directing the Clerk of Kings County to cancel the notice of pendency filed by plaintiff 184 Joralemon LLC, pursuant to CPLR 6514; and, pursuant to CPLR 6514 (c), awarding costs and expenses, including reasonable attorneys' fees, incurred as a result of the allegedly improper filing of the notice of pendency; and awarding sanctions in the form of attorneys' fees, costs and disbursements against plaintiff and its attorneys, pursuant to Rule 130-1.1 of the Chief Administrator, due to their allegedly frivolous conduct in commencing and refusing to discontinue this action."

MORTGAGE FORECLOSURE CLINIC IN NASSAU COUNTY

I will be there as a volunteer lawyer from 4 -6:

"Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources.

In addition to meeting one-on-one with a volunteer attorney, housing counselors, bankruptcy attorneys and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- are on hand to provide assistance.

→ Reservations are required by calling the Bar Association at 516-747-4070. Please bring your mortgage documents. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola."

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The notice can be simple:

"This is to confirm that the Purchaser (or Seller) is exercising the attorney contingency clause. I am presently in negotiations with the Seller's (or Purchaser's) attorney and we are negotiating a final contract."

Of course, the notice should be sent to all parties and counsel who are identified on the broker's contract.

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Before any notice is sent out, I suggest that the attorney for the Seller be contacted immediately and be advised that the contigency clause is being exercised.

YOM KIPPUR

Yom Kippur: A guide to understanding the Day of Atonement

SELLING A HOME IN TODAY'S MARKET

There are many reasons why a broker's "binder/contract" will be signed before an attorney is retained - whether it is at the insistence of an anxious buyer, nervous seller, aggressive broker, etc.

In any event, if I am made aware of this, I advise the client immediately of the effect of this. And that if certain items need to be negotiated, notice should be sent out immediately.

SELLING A HOME IN TODAY'S MARKET

So when does a binding contract exist when the parties sign a brokers' binder ? A key case to examine is JAMES J. MORAN et al., Respondents, v. MEHMET ERK et al., Appellants 11 N.Y.3d 452 (2008):

"Read J.

On December 13, 1995, defendants Mehmet and Susan Erk signed a real estate contract to purchase the home of plaintiffs James J. and Kathleen D. Moran, a 5,000-square-foot ranchstyle house located in Clarence, New York. The contract, which was executed by the Morans on December 22, 1995, provided for a purchase price of $505,000, and contained a rider with an "ATTORNEY APPROVAL CONTINGENCY" stating as follows:

"This Contract is contingent upon approval by attorneys for Seller and Purchaser by the third business day following each party's attorney's receipt of a copy of the fully executed Contract (the `Approval Period'). . . . If either party's attorney disapproves this Contract before the end of the Approval Period, it is void and the entire deposit shall be returned."

Both the contract and the rider were form documents copyrighted and approved by the Greater Buffalo Association of Realtors, Inc. and the Bar Association of Erie County.^[*]

After signing the contract, the Erks developed qualms about purchasing the Morans' house. They discussed their misgivings with each other and with friends and family, and ultimately decided to buy a different residence. As a result, they instructed their attorney to disapprove the contract, and she did so on December 28, 1995, which was within the three-day period for invoking the attorney approval contingency.

The Morans—who had moved out of their Clarence residence in September 1995—kept the house on the market until it was eventually sold for $385,000 in late 1998. Shortly thereafter, they sued the Erks in Supreme Court, alleging breach of contract. They sought to recover as damages the difference between the contract price of $505,000 and the eventual sale price of $385,000, as well as "carrying costs" for marketing the Clarence property for almost three years beyond the date of the 1995 contract with the Erks.

After a bench trial, Supreme Court found in the Morans' favor, and entered a judgment against the Erks for $234,065.75, which represented the difference between the contract price and the eventual sale price, plus statutory interest. Citing McKenna v Case (123 AD2d 517 [4th Dept 1986]) and Ulrich v Daly (225 AD2d 229 [3d Dept 1996]), Supreme Court opined that "[i]t is well settled law that where a Buyer acts in bad faith by instructing his attorney to disapprove a real estate contract, the condition that the contract be approved by an attorney is deemed waived and a contract is formed" (21 Misc 3d 1137[A], 2006 NY Slip Op 52668[U], *5). Likewise relying on McKenna, the Appellate Division affirmed in a short memorandum opinion (45 AD3d 1329 [2007]). We subsequently granted the Erks' motion for leave to appeal (10 NY3d 704 [2008]), and now reverse.

Attorney approval contingencies are routinely included in real estate contracts in upstate New York (see e.g. Dorothy H. Ferguson, Subject to the Approval of My Attorney Clauses, 35 NY Real Prop LJ 35 [spring/summer 2007]; Alice M. Noble-Allgire, Attorney Approval Clauses in Residential Real Estate Contracts—Is Half a Loaf Better than None?, 48 U Kan L Rev 339, 342 [2000]). Requiring a real estate contract to be "subject to" or "contingent upon" the approval of attorneys for both contracting parties ensures that real estate brokers avoid the unauthorized practice of law (see Matter of Duncan & Hill Realty v Department of State of State of N.Y., 62 AD2d 690, 701 [4th Dept 1978], lv denied 45 NY2d 709, 821 [1978]; 1996 Ops Atty Gen No. 96F11), and allows both contracting parties to have agents representing their respective legal interests (see generally Real Property Law § 443 et seq.; Rivkin v Century 21 Teran Realty LLC, 10 NY3d 344, 352-356 [2008] [discussing brokers' agency relationships and duties in real estate transactions, and emphasizing that, absent express disclosure to the contrary, a real estate broker does not represent the interests of both parties to a transaction]). Where a real estate contract states that it is "subject to" or "contingent upon" the approval of each party's attorney, this language means what is says: no vested rights are created by the contract prior to the expiration of the contingency period (see Black's Law Dictionary 828 [8th ed 2004], contingent interest ["An interest that the holder may enjoy only upon the occurrence of a condition precedent" (emphasis added)]).

Here, as previously noted, the contract between the Erks and the Morans explicitly stated that "[t]his Contract is contingent upon approval by attorneys for Seller and Purchaser by the third business day following each party's attorney's receipt of a copy of the fully executed Contract," and further provided that "[i]f either party's attorney disapproves this Contract before the end of the Approval Period, it is void" (emphases added). The Morans argue that the contract nonetheless created an implied limitation upon an attorney's discretion to approve or disapprove the contract. We do not ordinarily read implied limitations into unambiguously worded contractual provisions designed to protect contracting parties. The Morans, however, contend—and the lower courts apparently agreed—that the implied covenant of good faith and fair dealing implicitly limits an attorney's ability to approve or disapprove a real estate contract pursuant to an attorney approval contingency. This argument misconstrues the implied covenant of good faith and fair dealing under New York law.

The implied covenant of good faith and fair dealing between parties to a contract embraces a pledge that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002], quoting Dalton v Educational Testing 457*457 Serv., 87 NY2d 384, 389 [1995] [additional citation omitted]). Yet the plain language of the contract in this case makes clear that any "fruits" of the contract were contingent on attorney approval, as any reasonable person in the Morans' position should have understood (see 511 W. 232nd Owners Corp., 98 NY2d at 153 [implied covenant of good faith and fair dealing encompasses "promises which a reasonable person in the position of the promisee would be justified in understanding were included" (citations omitted)]).

Further, considerations of clarity, predictability, and professional responsibility weigh against reading an implied limitation into the attorney approval contingency. Clarity and predictability are particularly important in the interpretation of contracts (see Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 381 [1986] ["when contractual rights are at issue, where it can reasonably be assumed that settled rules are necessary and necessarily relied upon, stability and adherence to precedent are generally more important than a better or even a `correct' rule of law" (some internal quotation marks and citation omitted)]), and "[t]his is perhaps true in real property more than any other area of the law" (Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995] [citation omitted]). But the bad faith rule advocated by the Morans, which derives from the McKenna decision, advances none of those objectives.

In McKenna, a short memorandum opinion, the Appellate Division held that an attorney's disapproval pursuant to an attorney approval contingency "would terminate plaintiff's rights under the contract, unless said disapproval is occasioned by bad faith" (123 AD2d 517, 517 [1986] [citations omitted and emphasis added]). The court further stated,

"While the issue of `bad faith' usually raises a question of fact precluding summary judgment, the uncontradicted proof demonstrates conclusively that defendant acted in bad faith by instructing his attorney to disapprove the contract. Defendant, by interfering and preventing his attorney from considering the contract, acted in bad faith and, therefore, the condition that the contract be approved by seller's attorney must be deemed waived and the contract formed" (id. [citation omitted]).

Reading a bad faith exception into an attorney approval contingency would create—as the McKenna court itself recognized —a regime where "question[s] of fact precluding summary judgment" would "usually [be] raise[d]" by a disappointed would-be seller or buyer any time an attorney disapproved a real estate contract pursuant to an attorney approval contingency. In an area of law where clarity and predictability are particularly important, "this novel notion would be entirely dependent on the subjective equitable variations of different Judges and courts instead of the objective, reliable, predictable and relatively definitive rules" of plain-text contractual language (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 403 [1993]).

The circumstances of this case illustrate the chanciness inherent in a bad faith rule. The Erks' attorney disapproved the contract for the sale of the Morans' Clarence house in late 1995. The Erks soon bought a house in a different community, and continued on with their lives, relying on their attorney's disapproval of a contract that declared that such disapproval rendered it "void." Some three years after their last contact with the Morans, the Erks were served with the complaint in this breach-ofcontract lawsuit. Now—10 years after their attorney disapproved the contract within a three-day disapproval period—the Erks are fighting a six-figure judgment for putatively breaching an unwritten covenant because of something Mrs. Erk may have said or neglected to say in a single conversation with her attorney.
I
ndeed, any inquiry into whether a particular attorney disapproval was motivated by bad faith will likely require factual examination of communications between the disapproving attorney and that attorney's client (see e.g. McKenna, 123 AD2d at 517 ["defendant acted in bad faith by instructing his attorney to disapprove the contract" (emphasis added)]; Moran v Erk, 45 AD3d 1329 [2007] ["the evidence supports the court's determination that defendants acted in bad faith by instructing their attorney to disapprove the contract" (emphasis added)]). That is, the disapproving attorney will be subpoenaed to testify about communications the disclosure of which might be detrimental to that attorney's client—a direct conflict with an attorney's duty to preserve a client's confidences and secrets (see 22 NYCRR 1200.19 [a] [defining "secret" as "information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client"]). This is precisely what occurred here, where the lower courts' findings of bad faith were expressly grounded in the deposition testimony of the Erks' attorney. Moreover, the threat to attorney-client confidentiality under a bad faith regime could harm the attorney-client relationship itself in the context of real estate transactions. A diligent attorney, cognizant of the risk of being subpoenaed to testify as to the basis for a disapproval, would face a perverse incentive to avoid candid communications with his or her client regarding a transaction in which the attorney is supposed to represent the client's legal interest.

All these potential problems vanish when an attorney approval contingency is interpreted according to its plain meaning, as our sister state of New Jersey has long done (see New Jersey State Bar Assn. v New Jersey Assn. of Realtor Bds., 186 NJ Super 391, 395, 452 A2d 1323, 1325 [1982] [approving "broad construction" of attorney approval clause "enabling an attorney to disapprove a contract or lease for any reason or reasons which would not be subject to review"], mod on other grounds and affd 93 NJ 470, 461 A2d 1112 [1983]). We therefore hold that where a real estate contract contains an attorney approval contingency providing that the contract is "subject to" or "contingent upon" attorney approval within a specified time period and no further limitations on approval appear in the contract's language, an attorney for either party may timely disapprove the contract for any reason or for no stated reason. Since no explicit limitations were placed on the attorney approval contingency in the contract in this case, the Erks' attorney's timely disapproval was valid, and the contract is void by its express terms.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, SMITH, PIGOTT and JONES concur.

Order reversed, etc.
 [*] The form contract, which is available electronically on the Bar Association's Web site (see http://www.eriebar.org/pdfs/Contract.pdf [last accessed Nov. 17, 2008]), contains the subject attorney approval contingency as paragraph "ATC1" (see id. at 9). A boldface header to paragraph ATC1 provides:
"ATTORNEY APPROVAL CONTINGENCY. CAUTION: The deletion or modification of Paragraph ATC1 (A) or Paragraph ATC1 (B), unless such modification extends the Attorney Approval Period or Addendum Approval Period, shall result in the automatic withdrawal of any bar association approval of this form" (id. at 9)."